Adversarial Method Baffles Judicial Panels

Mukti Rijal

Local election conducted recently has set off discussions among the concerned actors and stakeholders as to how local judicial committees mandated by the Constitution of Nepal, 2015  could be made functionally credible and effective during the upcoming years to ensure that  justice is accessible to the people living in rural vicinities of the country. The federal constitution authored by the Constituent Assembly that entered into force makes a provision for three-member judicial committee to be coordinated by democratically elected deputy mayors.

This constitutional provision has been elaborated and detailed out by the Local Governance Operation Act, 2017 as it explains and lays out process and procedure regarding the scope and modus operandi of its work. A general review of the previous five-year term of the judicial committees in rural municipalities and municipalities would reveal that they were mostly caught into dilemma as how to carry out their roles and responsibilities. Judicial committee members did remain generally confused and struggled at their wit's end as to whether they should limit and set focus on mediation as the sole mode of win-win dispute resolution or take recourse also to adjudication for reaching at the win-lose conclusion of the disputes. In order to clear this confusion, no such well-defined and need-based capacity development strategy was implemented to enable them to work according to their mandate.

Facilitation of dialogue 

As a result, no uniformity and similarity prevailed among the municipalities in regard to implementation of the roles and functions of judicial committee. Some municipalities had somehow to make their choice to give more emphasis to promote and enhance mediation to resolve disputes whereas others preferred to use both mediation and adjudication but without much success. The confusion was engendered as the byproduct of the provision in the law that provides for both mediation and adjudication as the mode of dispute resolutions. According to law, adjudication can be recourse only for some prescribed disputes as last resort in case the dispute could not be resolved through facilitated dialogue and negotiation. 

Moreover, the confusion became further acute and persistent as some lawyers and former judges, who provided trainings and orientation to the judicial committee members in their role as lead trainers and resource persons, did interpret, if not misinterpret,  the legal provision to iterate that the judicial committees are more or less similar to judicial institutions (court) at the local level. 

They should set up bench to hear and award verdict on the disputes. As taught by the lawyers prone to litigation by temperament and occupation judicial committees in some parts of the country set up bench and deputy mayor flaunted as if s/he was justice in the court of law.

However, it is yet to be thoroughly assessed whether the benches set up in the local government were really useful and effective to deliver justice to the needy people. But the situation in municipalities, where non-litigating lawyers, law academics and judges championing mediation and facilitative dialogue imparted trainings, became a bit different. These groups of trainers were more or less found being predisposed to make mediation friendly explanation of the legal provision and, therefore, laid emphasis on the preferred use of mediation to resolve disputes to enhance local harmony and constructive relationship in the community. As a result, in several municipalities, judicial committees made an enhanced use of mediation and facilitated dialogue to help resolve disputes and generate some exemplary successes as well. 

This indicates that the content and methodology of the training, professional proclivity and bias of the trainers can have an instrumental impact on the way the recipients (in this case judicial committees) make use of the knowledge and skills rightly or wrongly. As stated at the outset, the local election wrapped up last month has yielded a new composition of the judicial committees as the new elected leaders have begun a fresh tenure of their work. Judicial Committees will have to be reconstituted with the newly-elected deputy mayors taking the charge of their role as co-coordinator.

 In the previous term of the local governments, around 90 per cent of the deputy mayors had been women but this has changed significantly in the current composition of the local government leadership due to new political dynamics and realignment. This will change the composition of the judicial committee as well. The new coordinator and members will need a fresh bout of trainings and capacity development activities in order to orient them to undertake their responsibilities in regard to dispute resolution. No room should be left to sustain confusions and dilemma regarding their roles and functions as clear messages combined with knowledge and skills need to be imparted to them.

Bridging differences 

Since local disputes that are generally brought or registered for consideration at the ward-based mediation centres and judicial committees have been generally caused due to petty issues and misunderstandings, mediation and facilitated conversation between and among the disputing parties can help bridge differences, restore their relationships and clear their misgivings. It is, therefore, that non-legal, non-adversarial and non-confrontational mode of dispute resolution should be necessarily enhanced and adopted at the local level. 

Newly elected judicial committee members should be so oriented as to guide them to imbibe into the ethos and values of constructive dialogue and positive relationships at the local level. Especially in the matters dealing with dispute resolution through facilitated dialogue and mediation, lawyers cannot be of much help as they are trained and indoctrinated in the adversarial ideology and argumentative posturing. They bring litigious competitive perspectives into the issues that are put on the anvil and tend to hone their skills to outwit the rivals. This approach does not help build bridges to enhance better community relationships for local peace and harmony.  

(The author is presently associated with Policy Research Institute (PRI) as a senior research fellow.  rijalmukti@gmail.com)